Wednesday, January 02, 2013

Is New Originalism Really Less Determinate Than Old Originalism? A Thought Experiment

By Mike Dorf

My latest Verdict column is the second of a two-part series on what the SCOTUS might do if asked to rule on very restrictive gun control laws that fall short of the outright bans invalidated in District of Columbia v. Heller and McDonald v. City of Chicago. (The first column appeared here.)  In this second column, I use the gun control issue as an opportunity to make some points about the differences between old originalism--which seeks original intent--and new originalism--which seeks original public meaning.  Here I want to say a few words about determinacy of meaning and intentions.

As I note in the column, one of the standard critiques of old originalism is that the intention of a multi-member body like a legislature cannot readily be determined.  The problem is thought to be magnified for the Constitution and constitutional amendments, which become law through multi-stage processes.  Indeed, the multifariousness of intent with respect to politically contested matters typically counts as a reason for shifting to original meaning, because there will generally be fewer contests over the semantic content of a word than over the expected application of that word to some concrete problem.  But if new originalism avoids the difficulties occasioned by aggregating intent, it does so, some critics charge, by shifting to a higher level of generality.

Some examples should make the foregoing less abstract.  First, suppose you are an old originalist trying to figure out whether whipping felons as punishment violates the Eighth Amendment. You might well say that the sources are indeterminate. The Supreme Court's 1910 decision in Weems v. United States discusses the sparse evidence of the views of the framers and the somewhat more robust evidence that can be gleaned from positive law in the early Nineteenth Century. For present purposes, I'm just going to stipulate that a competent historian would say that there is insufficient evidence to reach a firm conclusion about what a majority of Congress, a majority of state legislators, or a majority of American voters thought about the application of the Eighth Amendment to whipping circa 1791 (or circa 1868, if you're interested in the original intent of the framers of the Fourteenth Amendment, held to incorporate the Eighth against the states).

Now suppose you're a new originalist. You no longer care whether the framers and ratifiers of the Eighth Amended intended or expected that it would ban whipping. Instead, you now want to know what the meaning of "cruel and unusual punishments" would have been at the time. Let's suppose there is a relatively determinate answer to that question: It meant "punishments that are both severe relative to the crime and rare."  So now you have to decide whether whipping is severe relative to the crime and rare.  You can address the rareness inquiry using objective data about how frequently whipping is imposed.  But "severe relative to the crime" looks irreducibly value-laden. It's the sort of test that living constitutionalists embrace.  Accordingly, new originalism sometimes solves old originalism's indeterminacy-of-aggregate-intent problem only by substituting an indeterminacy-in-the-sense-of-vagueness problem.

In the column, I note that indeterminacy in the sense of vagueness is in fact the feature of living constitutionalism that conservative originalists most deplore. Accordingly, I suggest that from the perspective of one who was drawn to originalism by a revulsion against living constitutionalism, new originalism is a step backwards, not forwards. But that suggestion can only be right if one thinks that, notwithstanding the aggregation problem, there is a substantial class of cases in which old originalism is fairly determinate.

Is there such a class of cases? In principle there could be. I said I was going to stipulate that the original expected application of the Eighth Amendment with respect to whipping was indeterminate, but we could imagine otherwise. Suppose that in the public debate over the Amendment, dozens of persons voiced a view about whipping, and that whether they favored or opposed the Amendment, they all said that of course it doesn't forbid whipping convicted felons, with disagreement only about whether the upper limit on the number of lashes was on the order of twenty or a hundred.  If that were so, then the shift from old originalism to new originalism would pretty clearly be a shift from determinacy on some questions (ten lashes of the whip are permissible as punishment for aggravated assault, say) to indeterminacy (maybe whipping is categorically forbidden because of its severity).

Whether--from the perspective of an originalist--new originalism is a step forward or backwards with respect to determinacy thus depends on what is partly an empirical question: In the run of cases likely to reach the courts, are we more likely to see issues as to which there was a consensus on original expected applications or original public meaning that is sufficiently precise that there will be consensus about their contemporary application? I don't know the answer to that question. I also realize that originalists care about other things besides determinacy.  Still, to the extent that determinacy is part of the equation, this strikes me as the sort of question that originalists might want to investigate. Because I'm not an originalist (old or new), I certainly don't want to investigate this question, although I'd be interested in looking at what others turned up.


David Ricardo said...

I think your entire position here is based on a false premise, which is that Originalists really want to determine original intent and base their positions on that. They do not.

The large majority of Originalists, and certainly Justices Scalia, Alito and Thomas simply use that position to support their pre-determined position on the law. They vote their preferences. For example they are opposed to homosexual activity so they declare it Constitutional to imprison those who engage in it. They are opposed to contraception and so declare government has a right to ban it. They want unlimited access to guns and so argue the originalist position.

The Constitution, particularly the Bill of Rights is a set of principles and procedures. On the principles side there is no "Originalist" thinking. The Founding Fathers were smart enough to know this. Conservative Supreme Court Justices who want to impose their values on society are not.

egarber said...
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egarber said...

In some ways, I think the biggest flaw with all originalism is its seeming assumption that judges are basically historians – rather than masters of a unique and largely ahistorical skill set. Many of the framers were common-law lawyers, so I think it’s fair to say that they expected judges to focus on doctrines more than pure history. History certainly *informs* the process, but the real skill is the ability to create a specialized judicial prism, complete with its own evolving techniques.

As such, it seems to me the cleanest approach for clarifying Heller is to determine proper levels of scrutiny, the way we do when considering fundamental rights or 14th Amendment equal protection. So if we’ve determined that “self defense” is a fundamental right in some way, when is it implicated? And when therefore does the government have to prove a compelling need in limiting that right, etc.? That’s the kind of language we should be hearing, imo. Determining the winner via a battle of historians sidesteps these key (modern) considerations, while making law less cohesive across basic rights.

Sam Rickless said...

I should probably read your column before commenting, but here goes. You say that "severe relative to the crime" looks irreducibly value-laden. And indeed this is true. You then say that this is the sort of test that living constitutionalists embrace and that the test incorporates an "indeterminacy-in-the-sense-of-vagueness" problem. I worry that there is a non sequitur here. From the fact that the question whether P is true is value-laden it does not follow that P is vague or indeterminate. Of course it is true that "relatively severe" is a vague phrase, but this has nothing to do with the fact that "severe" is a value term.

It's hard to believe that it is vagueness that conservative originalists most deplore. Almost every term in the English language is vague. Even the claim that the President must be 35 years old is vague. Suppose that X's mother went into labor at 10pm, that at midnight almost all of X's body has emerged from his mother's body (or perhaps all of X's body has emerged but the umbilical cord has not been cut). Whether X was born on the earlier day or the later day could make the difference between being 35 and being 34 at the time of inauguration. There is indeterminacy here, no?

But even if you don't buy this example, surely there are many others. The word "arms" in "keep and bear arms" is vague. What are arms? Are bows and arrows arms? Kitchen knives? Crossbows? Nuclear bombs? "Commerce" is vague. And so on. If vagueness makes conservative originalists apoplectic, then there is nothing to be done for them, no matter what.

No, I think that what bothers conservative originalists is not the *vagueness* of "severe relative to the crime", but rather its value-ladenness. Conservative originalists worry about moral disagreement, not about moral vagueness. They worry that the existence of moral disagreement, coupled with the assumption that such disagreement is intractable, entails that judges dealing with the phrase "cruel" will end up relying on their own moral intuitions or moral theories, thereby imposing their own moral views on the rest of us. The right answer to this worry, it seems to me, is twofold: first, the framers and ratifiers left us with value-laden language precisely because they expected us (particularly judges) to work out in detail what is morally true and what is morally false. (How else are we supposed to apply the just compensation clause?) Second, it is just a canard (unhelpfully popularized via the quip about 6 for Rawls and 3 for Nozick) that moral disagreement is *intractable*. In some cases, it is. But oftentimes, it isn't. And even when disagreement is intractable, the fact that judges need to decide moral issues as part of their job is simply unavoidable. So, as I think I have said on this blog before, if moral theory scares the originalist, then she or he should simply take more classes in (or read more books about) moral theory.

Sam Rickless said...

Re your verdict column: Whether new originalism has the same degrees of freedom as living constitutionalism depends almost entirely on the kind of language that is being interpreted. The claim that the president must be 35 is less vague, and leaves much less room to maneuver, than the claim that the president must be sufficiently mature to handle the job. So there is no necessary connection between new originalism and living constitutionalism, not even with respect to the results of applying them. In the case of the second amendment, if "keep and bear arms" means "possess arms adequate for self-defense", then this will yield a determinate and fixed answer to at least some questions (such as whether possession of guns outside the home may be seriously curtailed by the government). The classic living constitutionalist, by contrast, has much greater room to maneuver, because s/he thinks that the amendment can be read to mean different things at different times.

Balkin thinks he is both a new originalist and a living constitutionalist, but I think he is mistaken. He claims that the clause about the president's minimum age must be read as expressing a rule, while other clauses (such as the requirement that searches and seizures be reasonable and the due process clause) must be read as expressing standards or principles. This way, he thinks that he purchases determinacy where it is required and room to maneuver where that is permitted. But this won't work. I say this, because, according to Balkin, whether a clause should be read as expressing a rule or a standard/principle is determined not by its superficial linguistic properties, but by its underlying standard or principle, if there is one. And this is to beg the question at issue. So he is left with no principled means of determining whether a piece of language should be read narrowly or broadly.

Shag from Brookline said...

Jamal Greene's "The Case for Original Intent" (George Washington Law Review, Vol. 80:1683) makes this point in a very readable 24 pages. Greene has written fairly extensively on originalism and rather convincingly. The full circle may continue to circle with time as originalism continues to evolve.

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